160 Ga. App. 69 | Ga. Ct. App. | 1981
This is an action for malicious prosecution following the quashing of an indictment against the appellee charging him with presenting a false affidavit at a real estate closing. The appellant bank, which held an outstanding recorded lien on property of
Thereafter, appellee brought this action for malicious prosecution against the bank. The trial court denied the latter’s motion for summary judgment, and we granted the application for a discretionary interlocutory appeal.
The existence of malice is a condition precedent to an action for malicious prosecution. “Where, as in this case, there is no evidence whatever of any fraudulent conduct or improper motive on the part of the prosecutor, or of any other person dealing with the criminal prosecution, and it appears from the uncontradicted evidence that the accused was . . . indicted by the grand jury investigating it, and that there were some slight circumstances pointing to his guilt, though not enough to exclude every other reasonable hypothesis, a finding that the prosecution was malicious is without any evidence to support it.” Darnell v. Shirley, 31 Ga. App. 764 (9) (122 SE 252) (1924); Brown v. Scott, 151 Ga. App. 366, 369 (259 SE2d 642) (1979). Where neither the defendant nor any of its agents encouraged or commanded any law enforcement officer to arrest or prosecute the plaintiff, and the record is devoid of any suggestion of malice or bad faith, the furnishing of the defendant’s name under such circumstances is privileged under Code § 105-709 (1). Boyett v. Central of Ga. R. Co., 158 Ga. App. 622 (281 SE2d 356) (1981).
The trial court erred in denying the appellant’s motion.i-for summary judgment.
Judgment reversed.